Concerned Citizens v. Bd. of Adjustment

Annotate this Case

380 S.E.2d 130 (1989)

CONCERNED CITIZENS OF DOWNTOWN ASHEVILLE, an unincorporated association, Jim F. Hughes, John A. Auten, Robert H. Jolly, Plaintiffs, v. BOARD OF ADJUSTMENT OF the CITY OF ASHEVILLE, Defendant and Asheville-Buncombe Community Christian Ministry, Intervenor.

No. 8828SC877.

Court of Appeals of North Carolina.

June 20, 1989.

*131 David E. Matney, III, Asheville, for appellants.

William F. Slawter, Asheville, for defendant-appellee.

Whalen, Hay, Pitts, Hugenschmidt, Master & Devereux by Edward C. Hay, Jr. and Barry L. Master, Asheville, for respondent-intervenor-appellee.

ARNOLD, Judge.

Defendant Board of Adjustment of the City of Asheville contends that plaintiffs lacked standing to seek review of the Zoning Board of Adjustment's decision. We agree.

An appeal from a board of zoning adjustment decision "may be taken by any person aggrieved." N.C.G.S. § 160A-388(e). Thus, plaintiffs had standing only if they were aggrieved persons within the meaning of the statute. Heery v. Town of Highlands Zoning Board of Adjustment, 61 N.C.App. 612, 300 S.E.2d 869 (1983). As the court in Heery pointed out, an aggrieved party is one who can show either "some interest in the property affected," or, if plaintiffs are nearby property owners, they must show "special damage" which amounts to "a reduction in the value of [their] property." Id. at 613, 300 S.E.2d at 870, citing Pigford v. Board of Adjustment, 49 N.C.App. 181, 270 S.E.2d 535 (1980), disc. rev. denied and appeal dismissed, 301 N.C. 722, 274 S.E.2d 230 (1981); Jackson v. Board of Adjustment, 275 N.C. 155, 161-62, 166 S.E.2d 78, 82-83 (1969).

In this case, as in Heery, plaintiffs failed to allege, and the Superior Court failed to *132 find that plaintiffs would be subject to "`special damages' distinct from the rest of the community." Heery, 61 N.C.App. at 614, 300 S.E.2d at 870. Plaintiffs allege nothing more than that they are nearby or adjacent property owners. Though this might be sufficient to challenge the validity of an amendment to the ordinance itself in a declaratory judgment action, Godfrey v. Zoning Board of Adjustment, 317 N.C. 51, 66, 344 S.E.2d 272, 281 (1986), it is insufficient to allege standing under N.C.G.S. § 160A-388(e). See generally 3 Rathkopf, The Law of Zoning and Planning § 43.04 at 43-22 (1988).

The order appealed from is vacated, and the matter is remanded to the Superior Court for the entry of an order dismissing the petition for writ of certiorari and vacating the writ of certiorari granted.

Vacated and appeal dismissed.

JOHNSON and PHILLIPS, JJ., concur.